Human rights considerations are an everyday reality for Ontario employers. Decisions relating to hiring, performance management, accommodation, discipline, and termination all carry potential human rights implications.
This series, Managing Human Rights in the Ontario Workplace, will provide employers with a high‑level and practical overview of key human rights principles as they arise in the employment context. The goal is to help employers understand how discrimination is assessed under Ontario law, recognize situations that may trigger human rights obligations, and manage human rights related workplace issues as they arise.
Human Rights Law in Ontario
In Ontario, individuals are protected from discrimination under the Ontario Human Rights Code (the “Code”) in a number of defined social contexts, including accommodation (housing), contracts, employment, goods, services and facilities, and membership in unions, trade, or professional associations. Each context engages the Code in slightly different ways, but the underlying principles remain consistent.
This series focuses on discrimination in the employment context, where employer actions or lack thereof is subject to frequent scrutiny.
Discrimination under the Code can arise in more than one way. In the employment context, it most commonly appears as either direct discrimination or constructive discrimination. Understanding this distinction helps employers recognize risk even where there is no intent to discriminate.
Direct discrimination occurs where an individual is treated differently, either intentionally or unintentionally, because of a Code‑protected ground.
Constructive discrimination arises where a requirement, rule, or workplace practice appears neutral on its face but, in practice, results in an adverse or disproportionate impact connected to a protected ground. In these cases, discrimination may be established even if the rule is applied consistently and without animus.
Both forms of discrimination are assessed using the same prima facie, or initial threshold, test for discrimination.
The Legal Test for Discrimination
To establish discrimination an individual must demonstrate three elements:
- They have a characteristic protected by the Code;
- They experienced adverse treatment or impact; and
- The protected ground was a factor in that adverse treatment.
This is a relatively low threshold. Once these elements are established, the burden shifts to the employer to justify the conduct or to demonstrate that it met its legal obligations, including accommodation to the point of undue hardship.
1. Protected Grounds
The first element requires that the individual have a characteristic protected under the Code. These include age, ancestry, citizenship, colour, creed, disability, family status, gender expression, gender identity, marital status, place of origin, race, record of offences (in employment), sex (including pregnancy), and sexual orientation.
2. Adverse Treatment or Impact
The second element requires that the individual experience an adverse impact. This does not require termination or a major employment consequence. Adverse treatment may include, but is not limited to discipline, loss of hours, denial of opportunities, workplace harassment, or exposure to a poisoned work environment.
3. The Protected Ground as a Factor in the Adverse Treatment or Impact
The third element requires a connection between the adverse impact and the protected ground. Crucially, the protected ground does not need to be the sole or even the primary reason for the employer’s conduct. It is sufficient if it was one factor in the decision or outcome.
Tribunals have repeatedly confirmed that a protected ground does not need to be the primary or decisive reason for an adverse employment decision in order to establish discrimination. For example, even where an employer has legitimate concerns about employee misconduct, discrimination may still be found if a protected ground also influenced the outcome. In Tjernqvist v Mary Berglund Community Health Centre Hub, the Tribunal held that, although the employee’s misconduct had been established and justified certain consequences, it remained open to the employee to demonstrate that her disability or her request for accommodation also played a role in the decision to terminate her employment.
Employer Takeaways
Given the relatively low threshold for establishing discrimination under the Code, employers should adopt a proactive approach to managing human rights risks. One important way to do so is by maintaining clear, up‑to‑date human rights and accommodation policies. Just as important is ensuring that those policies are implemented consistently across the organization, which will likely require providing regular training to managers and supervisors. Early awareness and informed decision‑making will be essential to preventing workplace issues from escalating into human rights complaints.
Up Next
Understanding what constitutes discrimination under the Code is a necessary starting point for employers, but it is only one part of the analysis.
The next article in this series will examine what is not discrimination, including circumstances where conduct may appear discriminatory but is nevertheless permitted under the Code.
Subsequent articles will build on that foundation by addressing the employer’s duty to accommodate, duty to inquire, and the applicable legal tests for several of the protected grounds that most commonly arise in the workplace.
Need More Information?
For more information or assistance with accommodation and other issues under the Ontario Human Rights Code, contact Jessica Krueger at JKrueger@filionlaw.com or your regular lawyer at the firm.